The First Amendment Is Such a Nuisance

By
Rich Lowry

JewishWorldReview.com |
Every time the Supreme Court rules in favor of the First Amendment in a campaign-finance case, the left recoils in disgust.

The court's 5-4 decision in McCutcheon v. FEC is the latest occasion for the rending of garments and gnashing of teeth. The court struck down the limit on the aggregate amount a donor can give to candidates and political party committees, an arbitrary restriction it ruled incompatible with First Amendment protections for political expression.

In unison, the left pronounced itself outraged. Sen. Chuck Schumer (D-N.Y.)  who had $11 million in his campaign treasury as of December 2013  despite being a senator for life, called the decision "another step on the road to ruination."

Senate Majority Leader Harry Reid (D-Nev.), who has enough of a fundraising surplus that he was able to buy tens of thousands of dollars' worth of jewelry for his donors from his granddaughter, resorted to a thunderous non sequitur in denouncing the decision: "All it does is take away people's rights because, as you know, the Koch brothers are trying to buy America."

The First Amendment is for strippers, flag burners, pornographers, funeral protesters and neo-Nazis, but not for people trying to give money to political parties or candidates. They are a suspect class, marked out as a threat to democracy because they want to participate in democracy.

In his decision for the court, Chief Justice John Roberts noted that contributing to a candidate is political participation just like volunteering for a campaign or urging others to vote. As such, it is an exercise of the right to political speech and association.

"Money in politics may at times seem repugnant to some," Roberts writes, "but so too does much of what the First Amendment vigorously protects."

The decision in McCutcheon should have been a slam-dunk. Campaign-finance law limits how much a single donor can give in an election cycle to $5,200 for a federal candidate ($2,600 for the primary and $2,600 for the general), and $64,800 for a party committee.

The court let these so-called base limits stand on grounds that under the landmark Buckley v. Valeo decision, direct contributions to candidates hold the greatest possibility for creating corruption (the wisdom of these limits is an issue for another day).

But if you accept the base limits, the aggregate limits on the total anyone can give to candidates in a single cycle ($48,600) and to party committees and PACs in a single cycle ($74,600) make no sense. By the logic of the law, if a contribution to one candidate of $5,200 or less is not corrupting, there should be no fear that a donor giving a couple of dozen candidates that amount will be corrupting. Each of the candidates is receiving the proscribed amount or less.

Once a donor has hit the aggregate limit, though, it functions as an outright ban on further donations to candidates or parties  even though these individual donations aren't corrupting. This is an impingement of his or her political rights without any possible upside of preventing graft. In other words, it is obviously a violation of the First Amendment.

The critics of the decision object to it partly on egalitarian grounds: Very few donors have the resources to contribute enough to bump up against the aggregate limits, therefore the decision is "unfair." It gives disproportionate influence to a few people.

A free political system always has such disparities, though. Should Thomas Paine have been silenced, since his incredible rhetorical powers made him so much more influential than other pamphleteers at the time, let alone ordinary people? Should The New York Times be shuttered since it exercises more power over the political process than almost anyone else in New York?

Sen. Bernie Sanders (I-Vt.) natters on about the decision creating an "oligarchic form of society." Of course, as a member of the most self-regarding body in all of American politics, Sanders has more influence than almost everyone in Burlington, Vt., combined. He could remedy this inequality by resigning his seat tomorrow  but no, he insists on retaining his exalted place in the American ruling class.

At the root of the left's opposition to McCutcheon, and Citizens United before it, is that it reduces governmental control over the political process. That control is taken, ipso facto, to be a good thing.

If the First Amendment gets in the way, so much the worse for the First Amendment. Remember: The position of the Obama administration in oral arguments over Citizens United was that the government could ban books printed by corporations. Nancy Pelosi, the House minority leader, has proposed amending the First Amendment to give the government more latitude to limit political expression.

In his decision, Roberts writes "that the First Amendment 'is designed and intended to remove governmental restraints' from the arena of public discussion, putting the decision as to what views should be voiced largely into the hands of each of us." For those lamenting the decision, that is precisely the problem.